BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20120021023 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his Army Military Human Resource Record (AMHRR) by removing a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 February through 10 April 2008.

2.  The applicant states he is requesting the removal of the contested NCOER because there are multiple errors in the report. The multiple errors include:

	a.  The reviewer signed before both the rater and senior rater.  According to Army Regulation 623-3 (Evaluation Reporting System) paragraph 3-33k(3)(b), "For NCOERs, the reviewer's signature and date will not be before the rater's or senior rater's.

	b.  The listed rater is inaccurate because he was not his platoon sergeant.  His platoon sergeant should have been listed as his rater.

	c.  The comment which states, "Profile did not hinder his ability to perform duties on the flight line."  He was unable to climb on top of an aircraft because he was utilizing crutches and wore a "CAM" walker.  Therefore, he was unable to perform his job effectively.

	d.  He was over his body fat percentage and was conducting remedial physical training (PT), but there is no statement addressing his progress in remedial PT or the weight control program.  His progress in losing weight and his performance at remedial PT are required entries.

	e.  In Part V block b, one of the positions listed that he could best serve is "Supply Clerk."  A Supply Clerk position is not affiliated with his military occupational specialty (MOS).

3.  Two years elapsed during which the report was not posted in his AMHRR.  He assumed it would never be posted because of the corrections that needed to be made.  When it was brought to his attention that it was posted with the errors, he then resumed his research and reasons to appeal the report.  He neglectfully waited a very long time.  However, he recently appealed and some of the errors were corrected; but others still exist.  He asked his S-1 (personnel officer) for help, but got none.  He spoke with one of his commanders and first sergeants, both of whom were great contributors of noting the errors.  Even with their assistance, the appeal was not promptly managed.  He knows a considerable amount of time has passed since he received this report.  It took quite some time for him to do his research.  He has completed two combat tours during this time.  He allowed many distractions in his life to interfere with his appeal.  Nevertheless, he has been working hard to excel in his career.  He knows this report may be a hindrance to his efforts.  How this report was ever approved for posting appalls him.  The report was done with numerous mistakes.  He praises God for this opportunity to have it removed.

4.  The applicant provides copies of:

* DA Form 4856 (Developmental Counseling Form) dated 8 March 2008
* DA Form 2166-8 for the period 1 February to 15 May 2008
* Letter, Mosul Hospital, Iraq, dated 18 August 2008
* Enlisted Record Brief (ERB), dated 5 October 2012
* Memorandum for Record, Evaluation Report Appeal, dated 9 October 2012
* Memorandum, U.S. Army Human Resources Command (HRC), dated 23 October 2012
* DA Form 2166-8 for period 1 February to 10 April 2008
* Table, Evaluation Reports Available by Individual Lookup
* Portal Documents Listing
* Army Regulation 623-3, page 49
* Data Sheet concerning MOS 15S (Helicopter Repairer), Career Management Field 15






CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  At the time of his application, the applicant was serving in the Regular Army in the rank of staff sergeant, pay grade E-6.

3.  A DA Form 2166-8, for the period from 1 February 2008 to 15 May 2008, evaluated the applicant's duty performance as a squad leader in A Troop, 4th Squadron, 6th U.S. Cavalry Regiment.

	a.  The report shows in Part I (Administrative Data) his date of rank for specialist as 10 April 2008, indicating he had been reduced about a month prior to the ending date of the evaluation.  The applicant signed the report indicating that he understood his signature did not constitute agreement with the evaluation.  He also understood that his signature indicated he had verified the administrative data in Part I.

	b.  The report shows in Part II (Authentication) that the rater and senior rater had signed the report on 27 and 28 June 2008, respectively.  The reviewer's signature is dated earlier on 24 June 2008.  The applicant's signature is dated 1 July 2008.

	c.  Part III (Duty Description) states his duties, in addition to being a squad leader, included responsibility for the health and welfare of two Soldiers and their families; as well as for maintenance personnel performing scheduled and unscheduled aviation unit maintenance on ten helicopters valued at about $20 million dollars.  He also guided maintenance operations in accordance with directives, manuals, work standards, safety, and operational procedures and policies.


	d.  The report indicates in Part IVa (Army Values/Attributes/Skills/Actions) that he had successfully met the Army values standards, except for "Duty."  The bullet comments stated he lacked the ability to lead by example and had purposely risked his safety by making a careless decision.

	e.  In Part IVb (Values/NCO Responsibilities) he was rated as a success in competence and training; as needing some improvement in physical fitness/military bearing and responsibility/accountability, and as needing much improvement in leadership.  The bullet comments included the following statements:

* Ensured all tasks assigned to his squad were accomplished correctly with some supervision from platoon sergeant
* Failed to meet height and weight standards
* Profile did not hinder his ability to perform duties on the flight line
* Failed to lead by example, purposefully endangering himself by rocking a 4,000 pound concert barrier on himself causing a non-combat injury to himself
* The rated NCO has been notified of the reason for a change of rater
* Damaged government property through carelessness

	f.  Part V (Overall Performance and Potential) indicates that his rater considered his overall potential for promotion was marginal.  The rater listed the positions of crew chief, supply clerk, and tool room clerk as where he could best serve the Army in his current or next higher grade.  The senior rater evaluated his performance as poor and his potential for promotion as fair.  The senior rater comments included:

* Do not promote until Soldiers [sic] shows [sic] improvement in leadership
* Do not send to NCOES at this time
* Worst crew chief in the platoon
* Has the potential to excel with more training and dedication

4.  Records show that the applicant was promoted:

	a.  to sergeant, pay grade E-5 on 1 June 2010; and

	b.  to staff sergeant, pay grade E-6 on 1 June 2012.



5.  On 9 October 2012, the applicant appealed the subject NCOER.  He requested removal of the entire report due to numerous administrative errors and non-quantitative bullets which were not an accurate representation of his duty performance.

	a.  He requested correction of the following administrative errors:

* Spelling of his last name in Part I, blocks a (Name) and l (Rated NCO's Email Address) was missing two letters
* Date of reviewer's signature was after that of the rater and senior rater
* Through date of report should have been concurrent with his reduction in rank
* Report was completed by a platoon sergeant who was not his rater
* The number of rated months should have been only 3

	b.  He requested correction of the following substantive errors:

* Bullet comment stating "Profile did not hinder his ability to perform duties on the flight line" was incorrect because he was unable to climb on top of an aircraft due to having to use crutches and wear a "CAM" walker
* He was over his body fat percentage and was conducting remedial PT; but there was no comment addressing his progress
* One of the positions identified as being where he could best serve was "Supply Clerk" but this position is not affiliated with his MOS

6.  On 23 October 2012, the Appeals and Corrections Section, HRC considered the applicant's appeal and made the following decisions:

	a.  The subject NCOER was changed by correcting the spelling of the applicant's last name; making the ending date of the report to read 10 April 2008; showing only 3 months of rated time; and correcting his email address to show the correct spelling of his last name.

	b.  The substantive errors in Parts IVc and Vb were returned without action because more than 3 years of time had elapsed.  The applicant was advised he could appeal to this Board concerning those errors.

7.  Army Regulation 623-3 (Evaluation Reporting System):

	a.  This regulation prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, to include the NCOER.

	b.  Alleged errors, injustices, and illegalities in a rated Soldier's evaluation may be brought to the attention of the commander by the rated individual or anyone authorized access to the report.  The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.

	c.  NCOERs accepted for inclusion in the official record of a Soldier is presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.  To justify deletion or amendment of the report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the applicant.

	d.  Because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible.  As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult.  Substantive appeals will be submitted within 3 years of an NCOER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant it.  Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  The likelihood of successfully appealing a report diminishes, as a general rule, with the passage of time.  Prompt submission is, therefore, recommended.

8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the AMHRR and states the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  The NCOER is to be filed in the performance section of the AMHRR.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his AMHRR should be corrected by removing a DA Form 2166-8 (NCOER) for the period 1 February through 10 April 2008 because it contains multiple administrative and substantive errors.

2.  The available evidence shows that the applicant's appeal of the subject NCOER resulted in correction of most of the administrative errors.  His contention that the rater was not his platoon sergeant and the date when the reviewer signed the report were not addressed in the HRC response.

	a.  The applicant has not provided any substantiating documentation showing that the rater on the subject NCOER was incorrect.  He signed Part I verifying its accuracy.

	b.  There is no evidence showing that the rating officials failed in doing their duty.  It simply appears that after they completed their ratings and the reviewer concurred with those ratings, each then entered their electronic signature and date, albeit, out of proper sequence according to the governing regulation.  While this is an administrative error, there has been no apparent harm.  In fact, the applicant has since been promoted twice.

3.  In this case, he clearly admits that he was negligent in waiting so long to submit his appeal.  He argues that it took him a long time to research his reasons for the appeal.  He apparently relied on the possibility that it would not be posted to his AMHRR.  Unfortunately, his appeal to HRC did not provide sufficient justification to overcome his delay, and HRC chose not to consider his claim of substantive errors.

4.  In this case, the applicant has not provided any convincing documentation to support his contentions concerning the validity of the rater, missing comments about the status of his PT and weight control progress, or his inability to perform his duties because of his need to use crutches.  Furthermore, he has not made any specific request in this case to make those corrections.  He has simply asked to have the report removed from his AMHRR based on those errors.

5.  To justify removal of an NCOER from the AMHRR, the applicant must produce clear and convincing evidence showing that the presumption of regularity should not be applied to the report.  In this case, the applicant has failed to do so.

6.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x___  __x______  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________x_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120021023



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ABCMR Record of Proceedings (cont)                                         AR20120021023



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